Therefore before framing of the charge or charges against the accused compliance of Section 207 of the Code is mandatory and its non-compliance may result in causing prejudice to the accused. The purpose behind furnishing of documents and statements of witnesses to the accused at the commencement of the trial is to provide an opportunity to the accused to know the evidence and the materials being relied on in support of the charges and to meet those evidence and statements and set up a proper defence. In the case of non-compliance of Section 207 of the Code, the accused may not be able to defend the charges or to contend that no charge is made out against him. In this view of the matter, the provisions of Section 238 of the Code seem to be mandatory in nature. However, there may be a departure in a case where the statements of the witnesses or the documents submitted in support of the charge-sheet are voluminous and preparation of copies thereof is not practicable. In that situation the accused may be permitted to inspect the record.
Equivalent Citation: 2011 2 AWC1224All, 2011CriLJ1088
IN THE HIGH COURT OF ALLAHABAD
Criminal Revision No. 3221 of 2010
Decided On: 17.09.2010
Appellants: Pramod Kumar Sharma
Vs.
Respondent: State of U.P. and Anr.
Vs.
Respondent: State of U.P. and Anr.
Hon'ble Judges/Coram:
Shri Kant Tripathi, J.
Shri Kant Tripathi, J.
1. Supplementary affidavit filed on behalf of the revisionist is taken on record.
2. Heard learned Counsel for the revisionist and the learned AGA and perused the record.
3. This is a revision against the charges dated 19.07.2010 framed by the learned Judicial Magistrate III, Court No. 3, Bareilly against the revisionist under Sections 324/34, 504 and 506, IPC.
4. It appears that the Police submitted a final report in Case Crime No. 392 of 2002, under the aforesaid sections, P.S. Bhamaura, District Bareilly against which a protest petition was filed, the learned Additional Chief Judicial Magistrate, Court No. 8, Bareilly passed the order dated 06.05.2004 rejecting the final report and taking cognizance of the aforesaid offences and issuing process to the revisionist. It appears that on 19.07.2010, the learned Magistrate framed the aforesaid charges against the revisionist.
5. The learned Counsel for the revisionist submitted that there is no evidence against the revisionist for framing the charges. It is a matter for the trial court to see whether or not there is any evidence against the revisionist. It appears that the cognizance of the aforesaid offences was taken by the Magistrate under Section 190(1)(b) of the Code of Criminal Procedure (in short "the Code"), therefore, the trial is to be held as if the case has been instituted on a Police report.
6. The learned Counsel for the revisionist further submitted that it was obligatory on the part of the learned Magistrate to make compliance of Section 207 of the Code before framing the charges. Copies of the statements of the witnesses and documents, being relied in support of the charges, have not been furnished to the revisionist, therefore, framing of the charges was not proper.
7. The learned Counsel for the revisionist had put up a question in the office of the Magistrate to answer whether or not copies were furnished to the revisionist. The answer was that, no copy was furnished. A photostat copy of the answer so furnished has been annexed as annexure No. 3 to the supplementary affidavit. Copies of the order sheets have also been filed and there is no mention in any of the order recorded on the order sheet, that the copies of the statements of the witnesses and documents were furnished to the revisionist before framing of the charges. Section 238 of the Code provides that when in any warrant case instituted on a police report the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207.
8. In view of the provisions of Section 238 of the Code, it was obligatory on the part of the learned Magistrate to satisfy himself regarding compliance of Section 207 of the Code as and when the accused appeared before him at the commencement of the trial and he should have done so before proceeding further in the trial. Without ensuring compliance of Section 207 of the Code, framing of the charges under Section 239 of the Code was not proper.
9. It may not be out of context to mention that a prayer for discharge is liable to be considered in accordance with Section 239 of the Code. At that stage, the Magistrate has to consider the police report and the documents sent with it under Section 173 of the Code. The Magistrate may even examine the accused. After doing all these formalities the Magistrate has to provide the prosecution and accused an opportunity of hearing before any order under Section 239 of the Code is passed. If after considering the police report and the documents sent with it under Section 173 of the Code and after hearing the prosecution and the accused the Magistrate considers the charge or charges against the accused to be groundless, he shall, in that event, discharge the accused with a reasoned order. In case the Magistrate does not consider it proper to discharge the accused and is of the opinion that there is ground for presuming that the accused has committed the offence and could be adequately punished, the Magistrate may frame charge or charges against the accused, as per the provisions of Section 240 of the Code.
10. Therefore before framing of the charge or charges against the accused compliance of Section 207 of the Code is mandatory and its non-compliance may result in causing prejudice to the accused. The purpose behind furnishing of documents and statements of witnesses to the accused at the commencement of the trial is to provide an opportunity to the accused to know the evidence and the materials being relied on in support of the charges and to meet those evidence and statements and set up a proper defence. In the case of non-compliance of Section 207 of the Code, the accused may not be able to defend the charges or to contend that no charge is made out against him. In this view of the matter, the provisions of Section 238 of the Code seem to be mandatory in nature. However, there may be a departure in a case where the statements of the witnesses or the documents submitted in support of the charge-sheet are voluminous and preparation of copies thereof is not practicable. In that situation the accused may be permitted to inspect the record.
11. In view of the aforesaid, the framing of charges against the revisionist without compliance of Section 207 of the Code cannot be upheld.
12. Therefore, the petition is allowed. The charges framed by the Magistrate are quashed. The learned Magistrate is directed to furnish to the revisionist a copy of the charge-sheet, statements of the witnesses and other documents being relied on, in support of the charge-sheet. After doing so, the learned Magistrate has to reconsider the matter either for framing of the charges or discharging the revisionist, keeping in view the provision of Sections 239 and 240 of the Code.
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